January 3, 2007

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Every October the University of Chicago Legal Forum, a student journal, holds a symposium on a cutting-edge policy issue. This year the subject was immigration. All morning and afternoon, lawyers and students listened to papers in which a dominant theme was the policy and humanitarian disasters brought on by the government’s new Bureau of Immigration and Customs Enforcement (ICE)–the Department of Homeland Security unit that does the work of the now-defunct Immigration and Naturalization Service. ICE, as the recent immigration raids at Swift Meatpacking plants which saw entire families incarcerated in detention camps suggests, has largely transformed the regulation of immigrants’ pursuit of the American Dream into a function of criminal law enforcement. Thus the lawyers assembled in the mock courtroom were eager to hear what the conference’s keynote speaker would have to say about it all. She was ICE’s chief administrator, Julie Myers.

“In order to have a better America,” Myers pronounced, ICE was busy catching undocumented immigrants before they could commit “criminal and in some cases even terrorist acts.” She praised Alabama’s introduction of law-enforcement officers into the process of applying for driver’s licenses in that state and excoriated “sanctuary cities” like Houston and Chicago. Her prosecutorial mien surprised no one.

Then came something startling. As labor unions increasingly provide representation for undocumented workers, she said, “we need to look at” unions’ violations of the boundary between “charitable assistance and the unlawful employment of aliens.” Several lawyers were soon on the phone with labor officials trying to figure out what she meant. Is an ICE crackdown on labor organizing drives imminent? Was one already under way? Were unions harboring undocumented immigrants in violation of the law?

ICE spokesman Dean Boyd seemed a bit taken aback when reached by The Nation for clarification. “There is a fine line between organizing individuals, um, which is perfectly legal; however, once you cross that line where you might be involved in knowingly hiring illegal aliens, that’s a problem.” Then he reached for a bizarre analogy: mob lawyers. “We have had cases in the past, unfortunately, of attorneys doing the same thing,” Boyd said. “Lawyers who knowingly accepted laundered drug money as payment for their legal services–going so far as accepting large plastic bags of cash.” He compared that to a union “knowingly recruiting illegal aliens to join a company.”

That makes no sense. The 1986 Immigration Reform and Control Act (IRCA) specifically made companies criminally liable for knowingly hiring anyone in the country illegally. It exempts unions–who come in to organize workers after they are hired. Meanwhile, actual enforcement has proven so infrequent, and the rare penalties so negligible, that IRCA ended up creating a perverse incentive: Companies seek out workers without green cards as the most efficient way, as Yale law professor Michael Wishnie pointed out at the Chicago conference, to insure “union-free, OSHA-free, Title VII-free workplaces.” You just have to threaten workers who make a fuss with deportation. (Wishnie found that 54 percent of worksites raided by immigration authorities had active labor disputes.) If anything, the existence of unions makes it harder to hire undocumented workers.

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That’s a logic Boyd of ICE seems not to grasp. “Let’s say there’s a bunch of new employees, and some of them are illegal and the union organizer is an employee of the same company and is advising them, I don’t know, on how to, for example, where they can get better fake documents,” he fantasizes. “Or, ‘I know your status. Here’s a place where you can stay where law enforcement can’t check.'” Points out Steve Lerner, head of the SEIU’s building services division and architect of Justice for Janitors: “Where they usually get that advice is from their employer!”

Of all the experts contacted by The Nation, none could think of a single attempted prosecution of a union for immigration fraud. Boyd couldn’t name a specific case, either. In the real world the epidemic is the rise of bottom-feeding subcontractors who act as cut-outs, providing undocumented workers for companies to exploit free of consequences because they are not technically their employees. The Supreme Court has clearly established the right to join a union and collectively bargain, whatever one’s immigration status. Existing law also specifies that hiring halls–including ones run by unions–are not liable for the employment of undocumented workers.

So what is going on here? One of the things Representative James Sensenbrenner’s enforcement-only immigration bill seeks to change is making hiring halls liable for the mere presence of illegals. Perhaps they are the “charitable organization” to which Myers referred in her strange locution. Another clause of HR 4437 would prosecute any group–including churches–“aiding and abetting” those in the country illegally. Maybe those are the “charitable organizations” Myers had in mind.

The AFL-CIO is still trying to puzzle it all out. Was this a case of an Administration official a little more than a week before the election slipping a bad-cop signal to anti-immigrant voters even as Bush publicly favors humane-seeming “comprehensive” immigration reform? Or is this the bellwether of an actual reversal in enforcement, scapegoating unions for management’s own greedy sins?

Another possibility is that it was just the ignorant off-the-cuff musings of one more heck-of-a-job-Brownie Administration incompetent. Myers, wife of DHS Secretary Michael Chertoff’s chief of staff and niece of former JCS chief Richard Myers, and who now supervises more than 15,000 employees while in her previous job at Commerce she oversaw 170, was a controversial recess appointment. If it’s a policy shift ICE is after, could she be so dense as to be unaware, wonders Ana Avendano, the AFL-CIO’s chief gumshoe on the what-was-Myers-thinking case, that “there is no legal basis” for it?

Possibly. Luckily, there’s a fair way to find out. Democrats now control Congress. Put Myers under oath before a House or Senate committee, and she can explain what she meant herself.

Rick PerlsteinTwitterRick Perlstein is the author of Before the Storm: Barry Goldwater and the Unmaking of the American Consensus (2001),Nixonland: The Rise of a President and the Fracturing of America (2008), and The Invisible Bridge: The Fall of Richard Nixon and the Rise of Reagan (2014).